Saroj Devi & Ors vs Dcm Ltd
2012 Latest Caselaw 4290 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 LPA 11/2012

                                        Judgment Delivered on: 20.7.2012


       SAROJ DEVI & ORS                              ..... APPELLANTS

                             Through    Mr. Vinay Sabharwal, Advocate

                    versus

       DCM LTD                                       ..... RESPONDENT

Through Mr. Harvinder Singh, Advocate.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K.SIKRI, ACTING CHIEF JUSTICE (ORAL)

1. The Appellants are the legal heirs of the deceased Sh. Sant Kumar

who was an employee of the Respondent. Sh. Sant Kumar had raised the

dispute challenging the termination of his services which was referred to the

Labour Court with the following terms of reference:-

"Whether the services of Shri Sant Kumar have been terminated by the management illegally and/or unjustifiably, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The case set up by the deceased workman was that he was employed

with the Respondent since 17.10.1973 as a Weaver. He took leave from

8.9.1981 to 13.11.1981 which was sanctioned. He had gone to his native

place where he had fallen sick. Therefore he sent a leave application from

his native place to the Respondent applying for the leave for a period of one

month. After expiry of leave when he reported for duty alongwith fitness

certificate, he was informed that his services have been terminated w.e.f.

23.11.1981. According to him, neither any termination letter was given nor

he was paid any retrenchment compensation and notice pay and therefore,

termination was in violation of Section 25F of the Industrial Disputes Act.

In its defence, the Respondent invoked provisions of para 17-D of the

Standing Orders as per which absence without authorization for more than

10 days would amount to misconduct warranting dismissal from service.

The Respondent stated that as no leave application was received after

13.11.1981, invoking the aforesaid Standing Orders, his services stood

terminated w.e.f. 23.11.1981.

3. We would like to mention here that during the pendency of the

proceedings before the Labour Court, the factory of the Respondent at Bara

Hindu Rao, Delhi was closed down after taking permission of the Lt.

Governor, NCT of Delhi. The Respondent accordingly moved an

application for amendment of written statement stating that in view of the

said closure, the question of reinstatement of the workman did not arise.

4. The Labour Court passed the award dated 22.9.1995 holding the

termination of deceased workman as illegal and unjustified. We are not

recording reasons for holding so, as that aspect of the matter is not in dispute

before us. On the issue of relief, the Labour Court was of the view that the

deceased workman was entitled for reinstatement. However, since in the

meantime, the Respondent had closed the mill w.e.f. 1st April, 1989, the

Labour Court directed that he would be entitled to backwages till the closure

of the mill of the Respondent. The operative portion of the Award, in this

behalf, reads as under:-

"In view of the above, I hold the workman entitled for reinstatement but for closure of the Mill w.e.f. 1.1.1989 since the termination of the workman is illegal, unconstitutional he is entitled for back wages till closure of the mill of the management. Order passed accordingly."

The Labour Court thus held that termination was illegal and the

workman was even entitled to reinstatement. However, this relief of

reinstatement could not be given only for the reason that the Mill had been

closed down w.e.f. 1.1.1989. For this reason, full back wages upto the date

of closure were awarded.

5. The Respondent challenged this award by filing the writ petition. The

deceased workman also filed the writ petition claiming reinstatement on the

ground that there were other establishments of the Respondent management

where the workman could be reinstated. However, during the pendency of

these writ petitions, workman died and this is how the present Appellants

were brought on record.

6. The learned Single Judge has affirmed the Award of the Labour Court

insofar as it holds termination of the workman to be illegal. The learned

Single Judge has also held that the Award of full back wages upto the date

of closure of the Mill is also justified. Accordingly, insofar as writ petition

of the Respondent is concerned that has been dismissed by the learned

Single Judge and the Respondent has accepted that order as no further

appeal is preferred by the Respondent. This aspect has, thus, attained

finality.

7. Dealing with the writ petition of the Respondent, the learned Single

Judge has held that since the workman had expired during the pendency of

the writ petition, in his writ petition the learned Single Judge held that the

relief of reinstatement has become infructuous. Faced with this situation,

the alternate plea of the Appellant was that even if the workman was not

reinstated because of the closure of the mill and he was granted backwages

till the closure, he was also entitled to closure compensation under Section

25FFF of the Industrial Disputes Act, inasmuch as in normal course when

the workman is entitled to be reinstated and the reinstatement was not

possible because of the closure of the mill, compensation could have been

awarded by the Labour Court. The learned Single Judge has, however,

rejected the prayer of closure compensation only on the ground that the

workman did not take any specific plea in this behalf.

8. Challenging this part of the order of the learned Single Judge denying

closure compensation, present appeal is preferred.

9. Mr. Sabharwal, learned counsel appearing for the appellants

submitted that in the given circumstances it was not necessary to specifically

make a prayer for grant of closure compensation before the Labour Court

and when the Labour Court itself found that the workman was entitled to

reinstatement and this reinstatement could not be given only because of the

closure of the Mill, relief could be moulded by granting closure

compensation in place of reinstatement. On the other hand, learned counsel

appearing for the Management submitted that when a particular relief is not

demanded the same was not to be paid as held by the Supreme Court in J.K.

Iron and Steel Company Ltd. Vs. Iron and Steel Mazdoor Union and

others, 1956 1 LLJ 227. He also referred to the judgment of Supreme

Court in the case of Life Insurance Corporation of India Vs. R.

Dhandapani 2006 I CLR 32.

10. On consideration of the submissions of the learned counsel for the

parties, we are of the view that there was no justified reason for denying the

closure compensation to the appellants. As noted above, the Labour Court

itself found that termination of the services of the workman was illegal and

he was entitled to reinstatement. As on the date of the Award, the workman

was alive and on this finding of the Labour Court, which has not been

interfered with by the learned Single Judge as well, the workman would

have been reinstated in service but for the fact that the Mill in which he was

working had been closed down by the management. Mr. Sabharwal is right

in his submission that in these circumstances when it becomes a reason

which prevented the Labour Court to reinstate the workman, the relief could

have been moulded by giving closure compensation which is the statutory

entitlement of the workman under Section 25-FFF of the ID Act. The

workman had claimed a larger relief of reinstatement and therefore nothing

prevented the Labour Court from giving lesser relief when larger relief

became impermissible due to the aforesaid reasons.

11. The judgments cited by the learned Counsel for the Respondent will

have no application to the facts of the present case. In J.K. Iron & Steel

Ltd. (supra), the Management had retrenched the workers on the ground of

shortage of raw material which was likely to continue for some time. The

Industrial Tribunal found that retrenchment was not due to any victimization

or lack of bona fides, directed reinstatement of the concerned workman and

directing lay-off in rotation in place of retrenchment, it was in these

circumstances, the Supreme Court set aside the Award holding that the

Labour Court could not go tangent disregarding the pleadings and giving the

relief which was not claimed. That is not the position in the present case

where the relief of closure compensation is intimately connected with the

main relief as this occasion arose because of the closure of the Mill of the

Respondent during the pendency of the proceedings and the management

itself filed application for amendment on this aspect.

12. Similarly, in Life Insurance Corporation (supra), the workman was

removed from service after inquiry in which he did not participate. The

inquiry was held on the charge of unauthorized absence. Though the

removal was held illegal by the Tribunal as well as the learned Single Judge

in the writ petition, the Division Bench allowed the LPA holding the

termination to be valid. Still the Division Bench directed the LIC to grant

pension to the workman for the period of service. It is this order of the

Division Bench granting pension was set aside by the Supreme Court in the

absence of logical reasoning and holding that there should not be misplaced

compassion. In the present case, we find that in the event of closure, the

closure compensation is the statutory right.

13. Matter can be looked into from another angle as well. The workman

was terminated in 1981 and the Mill was closed down in the year 1989.

When the termination is held to be illegal, it is deemed that the workman

was in service and he would have continued in that position till the date

when the Mill was closed down. On closure of the Mill, he would have got

closure compensation. On this ground also the respondent cannot deny

closure compensation to the appellants.

14. We thus allow this appeal and direct the respondent to pay closure

compensation to the appellants, legal heirs of the deceased workman in

accordance with the provisions of Section 25FFF of the ID Act treating the

workman to be in service from the date of his engagement in the year 1973

till the date of closure of the Mill in 1989. The appellant shall also be

entitled to costs of ` 10,000/-. The payment shall be made within four

weeks.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE JULY 20, 2012 dk/skb